Last week’s announcement by the Chinese Government that it was replacing the one child policy with a two child policy brought to light something that I hadn’t considered before: the legal limbo of “illegal” children. This NYTimes article is an excellent, disturbing piece that highlights the difficulties faced by children born without the relevant authorities’ permission. The article centres on Li Xue, a 22-year old from Beijing, who was the second daughter in her family and has been made to pay for her parent’s “crime”.

“‘Li Xue is a Chinese citizen,’ her mother, Bai Xiuling, said in an interview. ‘But nobody acknowledges her existence. Only her family does.’

The second daughter of a blue-collar family in southern Beijing, Ms. Li was born contrary to the rules that have limited most urban couples to one child. Like quite a few such ‘illicit household’ children, she grew up, essentially, as a stateless inhabitant of her own country — without the identity documents, rights and services that usually come with citizenship. She never went to school, and has struggled to find work.”

As Li states in the article, she is being made responsible for being born. Without the requisite residence permit and identity card, she cannot go to school, access health care, get a good job or get married. This punishment is estimated to have been inflicted upon at least 6.5million Chinese (although the Guardian article I cited in my blog post last week put the figure much higher than that). Ironically however, such punishments for breaking the one child policy are themselves illegal:

“The rules say that officials cannot deny such children their official resident permits and other papers, but in practice officials deny them as a way of punishing families, or families avoid applying for the permits out of fear of being fined. In previous decades especially, local governments have been under intense pressure to meet population control targets, encouraging administrators to resort to forced abortions, home demolitions and other coercive measures to punish wayward families.”

As law academic Yang Zhizhu notes, according to the law it is illegal to deny people residence permits because of family planning violations.

“‘But in practice, some local governments still bundle the two things together, to make it more costly to ignore the rules and to extract fines,’ Mr. Yang said. ‘Being the capital, Beijing has always been especially strict in population policy.’”

Although under the new two child policy families will be able to have a second child, there is no indication that the Government will retrospectively help people in Li’s position. Li is not hopeful:

“‘It’s been 22 years and we’ve already been through a lot,’ she said. ‘The government has talked about legislation and policy changes, but I feel we just have to wait and watch, and hope that afterward they will implement or enforce these things.’”

And of course such “illegal” children will face similar legal discrimination under the new rules. The only difference will be that they will be the third born in a family, not the second.

Marcus Roberts was two years out of law school when he decided that practising law was no longer for him. He therefore went back to university and did his LLM while tutoring. He now teaches contract and...